Citation Nr: 0716757
Decision Date: 06/06/07 Archive Date: 06/18/07
DOCKET NO. 05-13 558 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to an increased disability rating for right
knee chondromalacia, with patellofemoral malalignment
syndrome and minimal degenerative changes, currently rated as
10 percent disabling.
2. Entitlement to an initial disability rating in excess of
10 percent for left knee chondromalacia with minimal
degenerative changes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The veteran served on active duty from December 1972 to July
1973.
This appeal comes before the Board of Veterans' Appeals
(Board) from rating decisions by a Regional Office (RO) of
the United States Department of Veterans Affairs (VA). In a
July 2002 rating decision, the RO denied an increased rating
for the veteran's service-connected right knee disability.
In an October 2004 rating decision, the RO granted service
connection for a left knee disability, and assigned a 10
percent disability rating, effective November 19, 2001.
FINDINGS OF FACT
1. The veteran's right knee chondromalacia, with
patellofemoral malalignment syndrome and minimal degenerative
changes, is manifested by pain and crepitus, without
recurrent subluxation or lateral instability, or more than
minimal limitation of motion.
2. The veteran's left knee chondromalacia, with minimal
degenerative changes, is manifested by pain and crepitus,
without recurrent subluxation or lateral instability more
than minimal limitation of motion.
CONCLUSIONS OF LAW
1. The veteran's right knee disability does not meet the
criteria for a disability rating in excess of 10 percent.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4,
including §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003,
5257, 5260, 5261 (2006).
2. The veteran's left knee disability does not meet the
criteria for a disability rating in excess of 10 percent.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4,
including §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003,
5257, 5260, 5261 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations address VA's duties to notify and
claimants in the development of evidence relevant to their
claims for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
The United States Court of Appeals for Veterans Claims
(Court) has held that a claimant is entitled to VCAA notice
prior to initial adjudication of the claim. Pelegrini v.
Principi, 18 Vet. App. 112, 120 (2004). The Court explained
in Pelegrini, however, that failure of an agency of original
jurisdiction (AOJ) (in this case, the RO) to give a claimant
the notices required under the VCAA prior to an initial
unfavorable adjudication of the claim does not require the
remedy of voiding the AOJ action. The Court stated that it
is sufficient remedy for the Board to remand the case to the
AOJ to provide the required notice, and for VA to follow
proper processes in subsequent actions. Id.
In the consolidated appeal of Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006), the Court held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; (3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Dingess/Hartman,
19 Vet. App. at 486. Additionally, this notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. Id.
In this case, the RO issued the veteran VCAA notices in May
2002, July 2004, and March 2006. Those notices informed the
veteran of the type of information and evidence that was
needed to substantiate claims for service connection, to
establish original and increased ratings, and to establish
effective dates for benefits awarded. VA has conducted all
appropriate development of relevant evidence, and has secured
all available pertinent evidence. VA examinations have been
conducted. The veteran has had a meaningful opportunity to
participate in the processing of his claims. The Board finds
that VA has adequately fulfilled its duties under the VCAA.
To the extent that VA has failed to fulfill any duty to
notify and assist the veteran, the Board finds such error to
be harmless error that would not reasonably affect the
outcome of the veteran's claims.
Ratings for Knee Disabilities
The present appeal involves the veteran's claim that the
severity of his service-connected right and left knee
disabilities warrants higher disability ratings. Disability
evaluations are determined by the application of the Schedule
For Rating Disabilities, which assigns ratings based on the
average impairment of earning capacity resulting from a
service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R.
Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The
appeal of the left knee rating arises from the original
assignment of a disability evaluation following an award of
service connection. In such cases, the severity of the
disability at issue is to be considered during the entire
period from the initial assignment of the disability rating
to the present time. See Fenderson v. West, 12 Vet. App. 119
(1999).
The veteran's service-connected right and left knee
disabilities have been rated by the RO under the provisions
of 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under this
regulatory provision, recurrent subluxation or lateral
instability of the knee is rated at 30 percent if severe, 20
percent if moderate, and 10 percent if slight. The rating
schedule evaluates degenerative changes, or arthritis, in
joints according to the limitation of motion in the affected
joints. If the limitation of motion is not compensable under
the appropriate diagnostic code, a 10 percent rating is
assigned for each major joint. 38 C.F.R. § 4.71a, Diagnostic
Code 5003. Limitation of motion of the knee is rated
compensably if flexion is limited to 45 degrees or less, or
if extension is limited to 10 degrees or more short of full
extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.
In the present case, it should also be noted that when
evaluating disabilities of the musculoskeletal system, 38
C.F.R. § 4.40 allows for consideration of functional loss due
to pain and weakness causing additional disability beyond
that reflected on range of motion measurements. DeLuca v.
Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45
provides that consideration also be given to weakened
movement, excess fatigability and incoordination.
The RO granted service connection for a right knee
disability, chondromalacia, effective from the veteran's
separation from service. The veteran later claimed that
disability in his left knee had developed as a result of his
chronic right knee disability. The RO granted service
connection for left knee chondromalacia effective from
November 19, 2001.
Medical records and statements from the veteran contain
reports of ongoing pain in the right knee. In July 2001, the
veteran had private treatment for persistent pain and
swelling in his left knee. On examination, the left knee was
stable. The range of motion of the knee was described as
pretty good, but limited to less than full flexion. There
was slight discomfort with motion. The treating physician's
impression was bursitis versus tendonitis. The physician
prescribed pain medication and a knee immobilizer for
comfort.
Statements from a private orthopedist in March 2002, and a
private family practitioner in March 2005, indicated that the
veteran had a diagnosis of retropatellar pain syndrome
bilaterally, and that exercise to strengthen the quadriceps
was recommended.
On VA examination in June 2002, the veteran reported a long
history of pain in his right knee, and more recent pain and
swelling in his left knee. He stated that he worked for the
postal service as an electronics technician. He indicated
that he work required kneeling to work on machines, and that
he wore knee pads. He related that his knees swelled often,
locked from time to time, and gave out from under him from
time to time. He reported that he had grinding and popping
in both knees all the time. He stated that he could not
squat and could not run. He indicated that he had no
limitation on walking, and that he was able to go up and down
stairs. The examining physician observed that the veteran
walked with a normal gait, with no antalgic component. The
veteran was able to walk on his heels and on his toes. The
range of motion of both knees was normal, from 0 to 135
degrees. There was no evidence of laxity or instability.
There was patellar rub in both knees, more in the left.
On VA examination in November 2004, the veteran reported that
pain in his knees had worsened since the 2002 examination.
He related that he continued to work repairing machines for
the postal service. He indicated that he did not take pain
medication. He stated that he often wore knee supports. He
related that he had flare-ups of worse pain about once a
week. He indicated that he felt grinding in his knees. He
stated that he did not experience swelling, locking,
instability, or giving out of the knees. He reported that he
had difficulty kneeling, squatting, and going up and down
stairs. He stated that he avoided running, jumping, and
heavy lifting, as those would aggravate his knee pain. He
stated that he was able to drive and walk without limits.
The examining physician observed a normal gait. The veteran
was able to walk on his toes and heels. There was crepitus
in both patellae. Both knees had a range of motion from 0 to
140 degrees. There was no evidence of laxity or instability
of either knee. After ten repetitions of extending each knee
against resistance, the examiner found no fatigability,
incoordination, or loss of range of motion. X-rays showed
mild degenerative changes in both knee.
In precedent opinions, the VA General Counsel has found that
arthritis and instability of the knee may be rated separately
under separate diagnostic codes, provided that any separate
rating is based on additional disability. VAOPGCPREC 23-97,
62 Fed. Reg. 63,604 (1997); VAOGCPREC 9-98, 63 Fed. Reg.
56,704 (1998). In this case, however, the evidence does not
indicate that either of the veteran's knees has significant
instability or subluxation such as would warrant a
compensable rating under Diagnostic Code 5257. The
chondromalacia in both knees does produce pain and crepitus
comparable to arthritis. There is no limitation of motion
that would warrant compensable ratings under Diagnostic Codes
5260 or 5261; so the symptoms warrant only the basic 10
percent rating for each major joint provided under Diagnostic
Code 5003. Examinations have not shown that either knee has
weakness, weakened movement, fatigability, or incoordination.
The functional loss due to pain in each knee is appropriately
addressed by the existing 10 percent ratings. The left knee
disability has not warranted a rating higher than 10 percent
at any time since November 19, 2001, the effective date of
service connection. Staged ratings for this disability are
therefore not warranted. Fenderson. The preponderance of
the evidence, then, is against the claims for higher ratings.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that the
service connected right and left knee disabilities have
resulted in marked interference with employment or
necessitated frequent periods of hospitalization. Under
these circumstances, the Board finds that the veteran has not
demonstrated marked interference with employment so as to
render impractical the application of the regular rating
schedule standards. In the absence of such factors, the
Board finds that criteria for submission for assignment of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are
not met. See Bagwell v. Brown, 9Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
The appeal is denied as to both issues.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs